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Date:
04/01/2020
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DOL Issues Clarification on the Interplay Between Emergency Paid Leave, Shelter in Place Orders, Worksite Closures, and Furloughed Employees

UPDATED- April 1, 2020

The Department of Labor (“DOL”) has released guidance addressing two key questions under the Families First Coronavirus Response Act (“the Act” or “the FFCRA”): whether employees who have been furloughed or who have no work due to a closed worksite have a right to paid leave benefits under the Act; and if the terms “isolation and quarantine” used throughout the Act apply to “shelter in place” orders.

On March 27, 2020, the DOL updated the Families First Coronavirus Response Act: Questions and Answers. That guidance limits employee eligibility for FFCRA benefits; today’s update further clarifies that these limitations apply when worksites are closed due to business circumstances or when ordered by federal, state or local governments.

In the March 27th directive, the DOL stated the following regarding closed worksites and furloughed employees:

  • “If, prior to the FFCRA’s effective date [April 1, 2020], your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits.”
  • “If your employer closes after the FFCRA’s effective date [April 1, 2020] (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits.”
  • “If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits.”
  • If your employer remains open, but “furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits.”

All of these statements remain “true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a federal, state or local directive.

On April 1, 2020, the Wage-and-Hour Division of the DOL released a “temporary rule” that may include “shelter in place orders” within the umbrella of quarantine or isolation orders giving rise to sick leave obligations—provided an employer has work available for an employee who is otherwise being ordered to shelter in place. That rule states:

  • “Quarantine or isolation orders include a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility.”
  • “An employee subject to one of these [quarantine or isolation] orders may not take paid sick leave where the employer does not have work for the employee. This is because the employee would be unable to work even if he or she were not required to comply with the quarantine or isolation order. For example, if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it would no longer have any work for its employees. A cashier previously employed at the coffee shop who is subject to a stay-at-home order would not be able to work even if he were not required to stay at home. As such, he may not take paid sick leave because his inability to work is not due to his need to comply with the stay-at-home order, but rather due to the closure of his place of employment. That said, he may be eligible for state unemployment insurance …”
  • “This analysis holds even if the closure of the coffee shop was substantially caused by a stay-at-home order. If the coffee shop closed due to its customers being required to stay at home, the reason for the cashier being unable to work would be because those customers were subject to the stay-at-home order, not because the cashier himself was subject to the order. Similarly, if the order forced the coffee shop to close, the reason for the cashier being unable to work would be because the coffee shop was subject to the order, not because the cashier himself was subject to the order.”

The analysis of the reasons behind an employee’s inability to report to work will be fact-specific; employers are encouraged to consult legal counsel in determining FFCRA obligations. 

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